Many States Praised For Defying Voter Data Request Aren't Doing That At All

As election officials across the country push back against a wide-ranging request for voter data from a federal panel investigating election fraud, they may be getting too much credit ― or blame ― for resisting President Donald Trump.

Much of the news coverage, including HuffPost’s, has lumped together all 40-plus states declining to turn over some kind of information. But there are nuanced differences between those denials. Some states are unequivocally refusing to comply at all, while others have noted they’re prohibited by law from turning over some of the requested information. A number of states are turning over any of the requested information that is already publicly available.

The letter that Kansas Secretary of State Kris Kobach (R), the vice chair of the Presidential Advisory Commission on Election Integrity, sent to state election officials last week requests “publicly available voter roll data.” The panel is asking for sensitive information like the last four digits of voters’ Social Security numbers, felony convictions and voting histories, but only if that information is “publicly available” in the given state. So states that choose to provide public information are in fact complying with the commission’s request ― even if their officials are also expressing concern about the commission’s intent.

“Kobach asked only for publicly available information among a number of categories. If a state makes some information available publicly and will provide it to the Commission, that’s not a rejection of the request even if it won’t provide other, non-public information like last four of SSN,” professor Rick Hasen, an election law expert at the University of California, Irvine, wrote in an email.

On Wednesday, the White House blasted reports saying more than 40 states refused to comply as “fake news.” Kobach said at the time that only 14 states and the District of Columbia had outright declined the committee’s request for information.

As of Thursday afternoon, there were 15 states not complying at all: Arizona, California, Connecticut, Delaware, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Mississippi, New York, South Carolina, South Dakota, Virginia and Wyoming, according to a tally by the National Association of Secretaries of State. Some of them are refusing to do so out of fears about how the panel will use the information, while others are barred by state law.

The resistance narrative that has been imposed on the controversy is distracting from legitimate questions about election administration and privacy, according to MIT professor Charles Stewart.

“Really important issues here are becoming tied up in, I think, the big soup of ‘you’re either for Trump or you’re against Trump and that’s all we now care about,’” Stewart said. “There are legitimate questions about how best to assess how well the states do run their list maintenance operations. To turn this episode into one of the mean Kobach commission against the brave election officials obscures what I think is an important public policy question.”

For example, the controversy has exposed a key debate over what kind of information should be included in public voter files, Stewart said.

“We’re seeing a bit of a tussle between states that want to sometimes hang on to their voter files and an outside party who’s skeptical wanting to see the voter files,” he said. “What’s the balance between privacy and transparency in running elections?”

Defining this debate over voter data as a pro-Trump/anti-Trump battle will only make running free and fair elections more difficult, Stewart warned. It risks “further politicizing election administration.”

CORRECTION: Minnesota is one of the states refusing entirely to comply with the commission’s request. New Hampshire is not.